Defamation - Defences - Privilege

Question 1

What is the reasoning behind the defence of privilege?

Answer 1

The defence of privilege allows people speak and, crucially, publish without fear of defamation proceedings in circumstances where it is important that people are able to speak freely.

Question 2

What is absolute privilege?

Answer 2

Absolute privilege – covers situations where it is crucial that people are able to speak with complete freedom. No possibility of a claim for defamation no matter how malicious the speaker.

Question 3

What is a practical example of a case of absolute privilege?

Answer 3

Members of Parliament have a right to speak their mind in Parliament without any risk of incurring liability for defamation.

Question 4

What legal authority is there for the absolute privilege enjoyed by MP’s while speaking in Parliament?

Answer 4

Bill of Rights 1689 - ‘the freedom of speech and debate or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament’.

Question 5

What is qualified privilege?

Answer 5

This protects the publisher of defamatory statements where the defendant was under a duty to communicate the relevant information and the recipient has an interest in receiving it.

Question 6

What are the three key elements to qualified privilege?

Answer 6

1. D had a legitimate interest in informing readers of the statement
2. Readers had a corresponding and legitimate interest in being informed of the statement
3. D was not motivated by malice

Question 7

What is the meaning of the term ‘interest’ in the context of qualified privilege?

Answer 7

The interest does not cover gossip or whether the recipient would be ‘interested’ in the information, but it means that there is ‘an interest’ in receiving the information which is important enough that the law should protect the maker of the statement.

Question 8

Which case illustrated the importance of a proper ‘interest’ when considering qualified privilege?

Answer 8

Watt v Longsdon

Question 9

What are the details of the Watt v Longsdon Case?

Answer 9

The defendant received information about ‘immoral’ behaviour of the claimant and passed this on to the claimant’s wife and the company in which he worked. The claimant sued for defamation, the defendant claimed that he was under a duty to pass on information to the wife.

Question 10

What are the findings of the Watt v Longsdon Case?

Answer 10

It was held that there was a duty for the defendant to communicate the information to the board of the company. However, there was no duty to pass on the information to the wife. She would be ‘interested’ in the information but there was not a great enough public interest to justify passing on the information.

Question 11

How does malice affect the defence of qualified privilege?

Answer 11

A defendant will not be granted qualified privilege as a defence for a defamatory statement if said statement was made out with malice. A claimant is entitled to protection under a qualified privilege if the defamatory statement was honestly held.

Question 12

Which case reinforces the position that only honestly held defamatory statements will be protected under qualified privilege (providing the first two requirements are met)?

Answer 12

Horrocks v Lowe

Question 13

What was said in the case of Horrocks v Lowe?

Answer 13

In this case it was said that - ‘despite the imperfection of the mental process by which the belief is arrived at it may still be ‘honest’, that is, a positive belief that the conclusions they have reached are true. The law demands no more.’

Question 14

Which other category of qualified privilege has been created by s6 of the Defamation Act 2013?

Answer 14

Section 6 of the Defamation Act 2013 creates a new category of qualified privilege, that of a ‘peer reviewed statement in a scientific or academic journal etc’.

Question 15

What is the purpose and scope of this new category of qualified privilege created by s6 of the Defamation Act 2013?

Answer 15

It is aimed at facilitating academic debate. It only relates to things of a scientific or academic matter (s6(2)), that have been independently peer-reviewed by the editor of the journal and one or more experts (s 6(3)).

Question 16

What defeats this further category of qualified privilege?

Answer 16

The defence is defeated by malice.

Question 17

What is the privilege defence of ‘publication in a matter of public interest’?

Answer 17

Section 4 of the Defamation Act 2013 introduces a new defence of ‘publication in a matter of public interest’ which replaces the common law (Reynolds Privilege).

Question 18

What are the three key elements to the ‘publication in a matter of public interest’ defence?

Answer 18

1. The statement must be, or form part of, a matter of public interest
2. D reasonably believed that publishing was in the public interest
3. D’s statement may be either fact or opinion

Question 19

What are the details of the Reynolds v Times Newspapers Case?

Answer 19

The Times newspaper published an article on the political crisis in Ireland in 1994 which led to the claimant resigning and the collapse of the Irish government. The claimant argued that the article alleged that he had deliberately lied to mislead the Parliament. The Defendants argued that the article was covered by qualified privilege.

Question 20

What are the findings of the Reynolds v Times Newspapers Case?

Answer 20

It was held that qualified privilege is available in respect of political information when there had been a duty to publish the material to the intended recipients and when they had had an interest in receiving it, taking into account all the circumstances of the publication including the nature, status and source of the material. It follows from this finding that the media can be protected by privilege if they satisfy a test of public right to know and ‘responsible journalism’.

Question 21

What did Lord Nicholls provide in the Reynolds v Times Newspapers Case?

Answer 21

Lord Nicholls set out ten non-exhaustive factors which would be considered when determining whether there was a duty-interest for media publications to the world at large.

Question 22

What were the 10 factors laid out by Lord Nicholls in the Reynolds v Times Newspapers Case?

Answer 22

1. The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true.
2. The nature of the information, and the extent to which the subject-matter is a matter of public concern.
3. The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories.
4. The steps taken to verify the information.
5. The status of the information. The allegation may have already been the subject of an investigation which commands respect.
6. The urgency of the matter. News is often a perishable commodity.
7. Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary.
8. Whether the article contained the gist of the plaintiff’s side of the story.
9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact.
10. The circumstances of the publication, including the timing.

Question 23

What are the important distinctions between the type of privilege identified in the Reynolds Case and other types of privilege?

Answer 23

Reynolds relates to the contents of the statement and the conduct of the parties. Whereas normal qualified privilege relates to the occasion on which it is made .

Question 24

What is meant by the ‘public interest’ referred to in s4(1)(a) of the Defamation Act 2013 concerning the publication in the matter of public interest defence?

Answer 24

It was said, by Lord Bingham, in the case of Jameel v Wall Street Journal Sprl, that - ‘What engages the interest of the public may not be material which engages the public interest.

Question 25

Can the ‘public interest’ defence apply to publication of misinformation?

Answer 25

No, Lord Hobhouse observed - “No public interest is served by publishing or communicating misinformation”.
But the publisher is protected if he has taken such steps as a responsible journalist would take to try and ensure that what is published is accurate and fit for publication.

Question 26

What is meant by the requirement that regard should be given to all the circumstances of the case as stated in s4(2) of the Defamation Act 2013?

Answer 26

This means that the ‘10 factors’ from Reynolds v Times Newspapers Ltd are still persuasive.

Question 27

Which case supports the notion that courts must make allowances for editorial judgements as stated by s4(4) of the Defamation Act 2013?

Answer 27

Charman v Orion Publishing Group

Question 28

What is meant by the reasonable belief requirement referred to in s4(1)(b) of the Defamation Act 2013?

Answer 28

This simply means there must be a reasonable belief publication was in the public interest (reflecting the position in Reynolds).

Question 29

What further supports the reasonable belief requirement laid down in s4(1)(b) and Reynolds?

Answer 29

Lord Hoffmann in the Jameel Case said, ‘[i]n most cases, the Reynolds defence will not get off the ground unless the journalist honestly and reasonably believed that the statement was true’.

Question 30

Does the ‘public interest’ defence apply to statements of fact or opinion?

Answer 30

S4(5) of the Defamation Act 2013 provides a clarification of the common law. It is now clear that the public interest defence will apply regardless of whether the statement was one of fact or opinion.